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IN THE NEWS: More Top Lawyers Break Through $1,000 Hourly Billing Barrier
1. The death of an affiant will not preclude use of his affidavit on a summary judgment
motion unless the record shows no other possible source for the evidence; Cotton v.
Auto‐Owners Ins. Co. – 937 N.E.2d 414 (Ind.Ct.App. 11/18/10)(Najam)
2. A party in a federal arbitration may not rely on T.R. 28(E) to obtain non‐party
discovery in Indiana; In re: the subpoena issued to Beck’s Superior Hybrids, Inc. – 2011
WL 96481 (Ind.Ct.App. 1/12/11)(Najam)
3. T.R. 54(B)’s magic language is needed for immediate appeal of summary judgment
order on less than all claims; Forman v. Penn – 938 N.E.2d 287 (Ind.Ct.App.
12/8/10)(Boehm)
4. Exhibits attached to a complaint should not be considered on 12(B)(6) motion; Wise v.
Hays 2011 WL 529712 (Ind.Ct.App. 2/15/11)(Vaidik)
5. A tort claims notice requires only a basic legal theory and the applicable facts; Simpson
v. OP Property Management, LLC – 2010 WL 5133546 (Ind.Ct.App. 12/17/10)(Crone)
6. A judgment has no res judicata effect if it is not on the merits: TacCo Falcon Point, Inc.
v. Atlantic Limited Partnership XII – 937 N.E.2d 1212 (Ind.Ct.App. 11/22/10)(Kirsch)
7. Personal jurisdiction may be established against an out‐of‐state attorney who agrees to
represent a plaintiff injured in an Indiana accident; Foley v. Schwartz – 2011 WL
288308 (Ind.Ct.App. 1/31/11)(Brown)
8. Attorney disciplined for requiring non‐refundable engagement fee: In the Matter of
Heather McClure O’Farrell – 1201 WL 7 (Ind.S.Ct. 2/1/11)(Barton)
9. The Daubert standard does not control the admissibility of expert opinions in state
court cases; Akey v. Parkview Hospital, Inc. – 2011 WL 218495 (Ind.Ct.App.
1/25/11)(Sullivan)
10. Policy revision may be excluded from evidence as a subsequent remedial measure
under Rule 407; State Farm Mut. Inc. Co. v. Flexdar, Inc. – 937 N.E.2d 1203 (Ind.Ct.App.
11/22/10)(Vaidik)
11. Fault can be apportioned to plaintiff in crash worthiness case; Green v. Ford Motor Co. ‐
2011 WL 400343 (Ind.S.Ct. 2/8/11)(Dickson)
12. Video surveillance of home exterior is not invasion of privacy by intrusion; Curry v.
Whitaker – 2011 WL 217932 (Ind.Ct.App. 1/25/11)(Vaidik)
13. Pharmacists have a duty to warn of a prescribed medication’s side effects; Kolozsvari
v. Doe – 2011 WL 461626 (Ind.Ct.App. 2/10/11)(Bailey)
14. Voluntary intoxication is not a complete defense to a Dram Shop Act claim; Gray v.
D&G, Inc. d/b/a/ The Sandstone – 938 N.E.2d 256 (Ind.Ct.App. 12/3/10)(Mathias)
ADVOCACY TIP OF THE MONTH: Check out the Facebook pages of potential jurors.
NOTE: The contents of this handout consist mostly of blog entries from
IndianaLawUpdate.com prepared primarily by Brad Catlin and words taken directly from
appellate court opinions with citations generally omitted. Anyone intending to rely upon any
opinion should consult the published decision.
IN THE NEWS: More Top Lawyers Break Through $1,000 Hourly Billing Barrier
From abajournal.com Feb. 23, 2011:
Kirkland & Ellis lawyer Kirk Radke has emerged as one of the nation’s most expensive
lawyers, court filings suggest. Radke, a private equity and corporate lawyer, charged hourly fees
of $1,250 in early 2010. He is one of an increasing number of top lawyers billing more than
$1,000 an hour.
From WSJ.com Feb. 23, 2011: Big Law’s $1,000-Plus an Hour Club:
Nearly 2.9% of partners at a group of 24 large U.S. and British law firms asked for $1,000 an
hour or more in U.S. cases last year up from 1.5% in 2009. The average law-firm partner now
asks $635 an hour and bills $575, the firm said. But a small group of attorneys in some
specialties command significantly more.
"A thousand dollars an hour was a choke point for some clients," said Peter Zeughauser, a
consultant to law firms. "I don't think there will be another significant psychological barrier until
rates reach $2,000 an hour, which they will do, probably in five to seven years."
1. The death of an affiant will not preclude use of his affidavit on a summary
judgment motion unless the record shows no other possible source for the
evidence; Cotton v. Auto‐Owners Ins. Co. – 937 N.E.2d 414 (Ind.Ct.App.
11/18/2010)(Najam)
A passenger in a single car accident sued the driver, an insurer and the driver’s
grandfather who had supplied a temporary license plate to the driver. The grandfather
provided an affidavit before dying from an illness and prior to any deposition. The
passenger and insurer filed cross‐motions for summary judgment with the insurer relying
on the affidavit. The passenger moved to strike the grandfather's affidavit. The trial court
denied the motion to strike and granted the insurer's motion for partial summary
judgment. The passenger appealed.
The Court held that the Indiana Supreme Court's decision in Reeder v. Harper, 788
N.E.2d 1236, 1241‐42 (Ind. 2003), which held that "an affidavit that would be inadmissible
at trial may be considered at the summary judgment stage of the proceedings if the
substance of the affidavit would be admissible in another form at trial," applies to all
affidavits, not just expert affidavits. Thus, in order to strike the affidavit, the passenger
needed to describe what statements in the affidavit are inadmissible under Reeder because
the same evidence would not be admissible at trial from another source. The Court
observed that there were other potential sources to prove facts in the affidavit and thus
affirmed the denial of the motion to strike.
Lesson: An affidavit submitted in support of a motion for summary judgment can
only be stricken as containing information that is inadmissible if there is no other
form in which that evidence would be admissible at trial.
2
2. A party in a federal arbitration may not rely on T.R. 28(E) to obtain non‐party
discovery in Indiana; In re: the subpoena issued to Beck’s Superior Hybrids, Inc.
– 2011 WL 96481 (Ind.Ct.App. 1/12/11)(Najam)
In 2002, Monsanto entered into a contract with DuPont and, pursuant to that
contract, any disputes between the parties were to be resolved by arbitration in New York
City. In May 2009, Monsanto demanded arbitration and the arbitration panel issued a
subpoena duces tecum to Beck's, ordering Beck's to appear at a preliminary hearing, in
Indiana, before one of the panel members and to produce business records relating to
Monsanto's arbitration claim. Beck's refused to comply with the subpoena, arguing that the
FAA required Monsanto to seek enforcement of its nonparty subpoena in "the United States
district court for the district" in which the arbitration panel was sitting, the Southern
District of New York. Monsanto then filed a petition to assist in the Hamilton Superior
Court, pursuant to Indiana Trial Rule 28(E), to compel Beck's to comply with the subpoena.
The trial court agreed with Monsanto and ordered Beck's to comply with the arbitration
panel's subpoena.
On appeal, the Court held that Section 7 of the FAA is unambiguous: to enforce an
arbitration panel's subpoena against a nonparty, the party seeking enforcement must file
its petition "in the United States district court for the district" where the arbitration panel,
or a majority of its members, is sitting. Although an arbitration panel has relatively broad
power to issue a subpoena, "the authority of an arbitration panel to issue a nonparty
subpoena is not equivalent to the authority to enforce that subpoena." Because Section 7 is
clear, "the attempt to use an Indiana trial rule when a federal forum is unavailable
frustrates Congress' intent to limit these petitions to the federal courts."
The text of the law is the beginning and the end of our analysis. While that
language may in some cases, such as this one, create a "gap in
enforceability," federal case law persuasively demonstrates that such "gaps"
were an intentional policy choice by Congress. Monsanto may not use an
Indiana trial rule to circumvent the jurisdictional and territorial limitations
intended by Congress. Accordingly, the trial rule must yield to the federal
statute.
Lessons:
1. For non‐party discovery, a party arbitrating a dispute under the Federal Arbitration
Act may only rely upon a subpoena issued from the district in which the arbitration
is taking place.
2. A party arbitrating a dispute under the Federal Arbitration Act may not use Trial
Rule 28(E) to enforce a subpoena.
3. “Be careful about what you wish for” when electing arbitration.
NOTE: Judge Baker dissented, concluding that where there is no federal court
jurisdiction, as here, “it obviously makes no sense to direct the arbitrators to a federal
court.”
3. T.R. 54(B)’s magic language is needed for immediate appeal of summary
judgment order on less than all claims; Forman v. Penn – 938 N.E.2d 287
(Ind.Ct.App. 12/8/10)(Boehm)
3
Forman, a teen, was staying at a friend's home for the night. The boys were playing
video games when the adults retired for the night. The next morning, after the adults had
left for some errands before the boys were awake, the friend called them to report that
Forman could not be wakened. Ultimately, Forman was hospitalized and contends that he
has permanent injuries from ingestion of methadone that had been supplied by his friend
from the friend's mother's prescription.
Forman sued his friend and the adults, alleging negligent supervision and control
over the methadone and negligence in caring for him after it was discovered that he could
not be wakened. Western Reserve, with whom the home was insured, intervened, seeking
a declaratory judgment that it had no duty to provide a defense to Forman's complaint. It
moved for summary judgment and the trial court granted that motion.
On appeal, the Court sua sponte raised the issue of whether the trial
court's ruling on Western Reserve's summary judgment motion is an appealable order. It
concluded that it was not because the trial court did not include Rule 54(B)'s "magic
language" that "there is no just reason for delay and upon an express direction for the entry
of judgment."
We recognize that the questions of Western Reserve's obligation to provide a
defense and its potential exposure to liability present issues that are at least
in part distinct from the issues presented in the underlying lawsuit. In this
respect the coverage dispute may be viewed as separate from Forman’s
claims against the defendants. ... In any event, in Martin v. Amoco Oil Co., 696
N.E.2d 383, 385 (Ind. 1998), the Indiana Supreme Court established a “bright
line” rule enforcing the requirement of compliance with Trial Rule 54(B)
before an appeal may be taken as of right from a trial court ruling that does
not dispose of all claims. The Supreme Court specifically rejected the
“separate branch” doctrine developed in some cases in this Court that
permitted appeals of orders disposing of portions of lawsuits deemed
sufficiently independent of the remaining issues to warrant a direct appeal.
Id. We are bound by that precedent.
The decision regarding whether the order should be immediately appealable was in
the hands of the trial court. It did not decide to make the order appealable. Therefore, the
appeal had to be dismissed.
As the Court pointed out, the parties were free to ask the trial court to amend its
order, but litigants should be aware of this ruling before spending the time and resources
on an appeal from a non‐appealable order. An order is not appealable merely because it
resolves a distinct portion of a case; it is appealable if the trial court provides the language
necessary to make that order appealable.
Lessons:
1. An order granting summary judgment on a distinct branch of a case is not
immediately appealable unless the trial court includes Trial Rule 54(B)'s
magic language.
2. The Court of Appeals is paying attention to whether it has jurisdiction,
even if those issues are not raised by either party.
Note: Former Supreme Court Justice Ted Boehm is still deciding appellate cases.
4
4. Exhibits attached to a complaint should not be considered on 12(B)(6)
motion; Wise v. Hays 2011 WL 529712 (Ind.Ct.App. 2/15/2011)(Vaidik)
The plaintiff sued the defendants for fraud and negligence and attached numerous
documents to the complaint, including an email and letters relevant to the allegations. The
defendants moved to dismiss the plaintiff's claims, citing the exhibits attached to the
plaintiff's complaint. After a hearing, the trial court granted the defendants' motion, also
citing the exhibits attached to the complaint.
On appeal, the Court was concerned with whether the trial court's order was a
decision pursuant to Rule 12(B)(6) or Rule 56 for jurisdictional purposes. It concluded that
it had to treat the trial court's order as an order under Rule 56, explaining:
Wise submitted a number of exhibits with her amended complaint. In the
memorandum supporting their motion to dismiss, the Hayses cited Wise's
complaint as well as the attached exhibits, thus directing the trial court to
matters outside the pleading. Further, it is clear from the trial court's citation
to these exhibits in its dismissal order that it considered these exhibits. By
considering matters outside the pleading, the trial court in effect converted
the motion to dismiss into one for summary judgment and essentially ruled
in favor of the Hayses on summary judgment.
Lesson: If a court considers exhibits attached to a complaint on a 12(b)(6) motion,
it may need to convert the motion to one for summary judgment.
5. A tort claims notice requires only a basic legal theory and the applicable facts;
Simpson v. OP Property Management, LLC – 2010 WL 5133546 (Ind. Ct. App.
12/17/2010)(Crone)
One morning, the plaintiff was driving toward the exit of her apartment complex.
There was a steep decline near the exit, and as the plaintiff began driving downhill, she saw
that there was a car turned the wrong way in her lane. The plaintiff was unable to stop and
slid into the other car. Then, a school bus came over the hill and slid into her car. Two more
cars came over the hill and collided with the plaintiff's vehicle.
A few months later, the plaintiff sent a notice of tort claim to the local school district.
The notice described the accident and alleged that the school district had negligently hired
and trained its school bus drivers. The plaintiff later filed suit, alleging that the bus driver
had negligently operated the bus and that the school district was vicariously liable. The
school district moved for summary judgment and the trial court granted that motion. The
plaintiff appealed.
On appeal, the Court first addressed whether the plaintiff's tort claim notice was
sufficient. The school district argued that the plaintiff presented a different claim in her
complaint than in her tort notice. The Court disagreed.
While Simpson's notice and complaint could have been more clearly drafted,
we are not persuaded that Simpson's notice was inadequate. Simpson's claim
that the School District negligently hired and trained Matesick by implication
indicates that she was claiming that Matesick's conduct was wrongful. We are
hard pressed to see how the School District could be negligent by hiring and
training a bus driver who had done nothing wrong. Simpson's complaint
5
clearly states a claim for the School District's vicarious liability, but also
alleges that the School District is independently liable, which is easily
understood as a reference to her claims in the tort notice that the School
District negligently hired and trained Matesick. Simpson, however, alleged
negligence, and only negligence, in both her notice and her complaint, and
her various theories of liability all stemmed from the same set of facts. In
light of our rule that the notice requirements are to be strictly construed
against limiting the claimant's right to sue, we conclude that Simpson's notice
was adequate.
The Court also held that the school district was not immune from suit, despite the
fact that the accident was caused by a temporary weather condition. I.C. § 34‐13‐3‐3(3)
provides that a governmental entity or employee acting within the scope of employment is
not liable if a loss results from the "temporary condition of a public thoroughfare … that
results from weather." The Court held that this "subsection applies only to a situation
where the governmental entity being sued had a responsibility to maintain the roadway;
whether someone had the opportunity to clear the incline where [the bus driver] lost
control of the bus has no bearing on the propriety of his actions." It, therefore, held that the
school district was not immune from suit.
Lessons:
1. A tort claims notice is sufficient if it gives a basic legal theory and the applicable
facts, even if the plaintiff pursues a different version of that basic legal theory at
trial.
2. A governmental entity is only immune from suit due to a temporary weather
condition if that entity has some responsibility for alleviating that weather
condition.
6. A judgment has no res judicata effect if it is not on the merits: TacCo Falcon
Point, Inc. v. Atlantic Limited Partnership XII – 937 N.E.2d 1212 (Ind. Ct. App.
11/22/10) (Kirsch)
In 1999, a foreclosure action was initiated against a set of entities that were obligors
on a note secured by the mortgage. Eventually, the obligors entered into a consent
judgment in which the obligors agreed to be jointly and severally liable. Before the consent
judgment was entered, one of the obligors, ART, discussed purchasing the loan documents
from the lender. Eventually, ART designated a new company, TacCo, to purchase the
consent judgment and, eventually, TacCo bought the consent judgment.
The lender notified the other obligors that the consent judgment had been assigned
to TacCo and then filed a motion for entry of satisfaction of judgment. Before that motion
could be heard, TacCo declared bankruptcy. While the bankruptcy was pending, TacCo filed
an action in Michigan to enforce and domesticate the consent judgment. The obligors filed
affirmative defenses, including a strawman defense, in the Michigan action and sought to
have the bankruptcy court determine whether the judgment had been satisfied. The
Michigan courts (through appeal) did not address the strawman issue, stating that
Michigan did not recognize this defense. The bankruptcy court denied the obligors' motion
for a preliminary injunction on the issue of whether the judgment had been satisfied.
6
Eventually, the case was transferred to Indiana to address the strawman defense issue. The
trial court found that the judgment had been satisfied and TacCo appealed.
One of the key issues on appeal was whether either the Michigan or bankruptcy
court proceedings precluded the obligors from raising the strawman defense to prove the
judgment had been satisfied. The Court held that the bankruptcy court proceedings had no
preclusive effect because they only addressed whether the obligors were entitled to a
preliminary injunction.
[T]he determination made by the bankruptcy court was merely that, at the time of
the evidentiary hearing, insufficient evidence was presented to support the grant of
a preliminary injunction. This was not a full determination on the merits of the case
or the strawman issue.
The court then refused to give any of the Michigan proceedings preclusive effect because
the Michigan courts did not actually apply the law of the strawman defense.
At no time did the Michigan Circuit Court apply the law of the strawman defense to
the facts and circumstances of the present case and make a determination that ART did or
did not use TacCo as its strawman in the purchase of the Consent Judgment.
[W]e conclude that no Michigan court ever made a determination on the merits of
the issue of whether the judgment had been deemed satisfied because ART had used
TacCo as its strawman in the purchase of the Consent Judgment from Inland. The
courts in Michigan merely found that, although the strawman defense was available
in Indiana, it was not recognized in Michigan and that Michigan was not required to
recognize the defense in an enforcement proceeding.
The Court then went on to review whether the record supported the trial court's
conclusion that TacCo had been merely a strawman for ART and affirmed its decision.
The res judicata issues here are informative because the Court makes clear that the
judgment of another court will not have preclusive effect unless that court actually applied
the law to the particular legal issues that are allegedly precluded. If it did not, then the
decision was not "on the merits" and has no preclusive effect on those issues.
Lessons:
1. A judgment has no preclusive effect if it is not on the merits.
2. A judgment is not on the merits if it does not apply the law of a particular claim or
defense to the facts and circumstances of the present claim.
7. Personal jurisdiction may be established against an out‐of‐state attorney who
agrees to represent a plaintiff injured in an Indiana accident; Foley v.
Schwartz – 2011 WL 288308 (Ind.Ct.App. 1/31/11)(Brown)
Foley, a resident of Ohio, was riding on an ATV operated by Bastin on property
owned by Collins in Switzerland County, Indiana. At one point while operating the ATV,
Bastin came upon a hidden culvert pipe and suddenly steered the ATV in an attempt to
avoid striking it, causing the ATV to tip‐over, severely injuring Foley. The culvert pipe was
not functional. It had been replaced and was left on the property by the Switzerland
County Highway Dept. Foley hired Schwartz, an Ohio attorney, for representation in
connection with the ATV accident.
About a year after the accident, Schwartz spoke with an Indiana attorney, who
informed Schwartz about the Indiana Tort Claims Act. Soon thereafter, Foley terminated
7
Schwartz's employment as her attorney. Foley then filed a complaint against Schwartz for
legal malpractice for missing the 180 day deadline for giving notice under the Tort Claims
Act. Schwartz moved to dismiss the action for a lack of personal jurisdiction under Rule
12(B)(2). Over Foley's objections, the trial court granted that motion.
On appeal, the Court primarily addressed Foley's argument that Indiana had specific
jurisdiction over Schwartz. It held that, for the purposes of making that determination
against an attorney in the context of a legal malpractice case, the "continuous
representation doctrine" should apply. In other words, the Court would look to all facts up
until Foley's termination of Schwartz's representation when deciding whether those
contacts provided specific jurisdiction, rather than the facts up until the Tort Claims Notice
should have been filed. The Court determined that the facts described above were sufficient
minimum contacts with Indiana to confer specific personal jurisdiction.
The pertinent facts include: Schwartz contacted the adjuster for Collin's insurance
provider, who was officed in Indianapolis, for an explanation of the type of insurance and
policy limits. He also sent letters to multiple Indiana attorneys, asking if they were
interested in joining as co‐counsel on Foley's behalf and proposing a fee‐splitting
arrangement. In addition, Schwartz contacted the Switzerland County Highway
Department, the County attorney, and a contractor who may have performed work on the
culvert.
The Court then turned to determining whether it is reasonable for Schwartz to be
haled into an Indiana court. It concluded that it was, dismissing each of Schwartz's
arguments to the contrary.
After balancing all the factors, we conclude that Schwartz has failed to
persuade us that it would be unfair and unreasonable for an Indiana court to
exercise jurisdiction over him. Overall, we conclude that exercising
jurisdiction over Schwartz would not offend notions of fairness and
reasonableness. Accordingly, the court erred when it granted Schwartz's
motion to dismiss for lack of personal jurisdiction.
One of the facts relied upon by the Court in determining whether it is reasonable for
Schwartz to be haled into an Indiana court was the fact that he had visited casinos in Vevay
(in Switzerland County) twice a year for the last ten years.
Lessons:
1. When ruling on a 12(B)(2) motion in a legal malpractice action, a court must look to
all of the attorney's contacts through the end of the representation when
determining whether Indiana has specific personal jurisdiction over that attorney.
2. Courts will consider a broad range of facts when determining whether the exercise
of specific personal jurisdiction over a defendant is reasonable—so, pursue
discovery on all potential contacts, not just those related to the case.
8. Attorney disciplined for requiring non‐refundable engagement fee: In the
Matter of Heather McClure O’Farrell – 1201 WL 7 (Ind. S. Ct. 2/1/11) (Barton)
In this case the Indiana Supreme Court disciplined a family law attorney for having
her clients pay a non‐refundable engagement fee as part of the contract of employment.
8
This fee was "deemed earned upon commencement of Attorney's work on the case" and
served as the basis for a public reprimand.
The attorney used a standardized non‐refundable engagement fee provision in her
family law contracts. Both of the contracts described by the Court stated that the non‐
refundable fee assigned to that case "shall be deemed earned upon commencement of
Attorney’s work on the case." The attorney argued that this fee is paid by a client to induce
her firm to take a case and thus is earned on receipt. The Court held that it is improper to
include this kind of a fee in most cases.
A contract provision for a nonrefundable general retainer, with or without a
recitation of supporting circumstances, cannot be inserted as boilerplate language in all of
a firm's fee agreements. Routine inclusion of such a provision in all fee agreements
regardless of the circumstances would be misleading; and regardless of what the contract
says, the basis for charging a nonrefundable general retainer in a particular case must be
supported by the actual circumstances of that case.
Special circumstances that would not justify a non‐refundable fee did not include
"representing these clients precluded the Law Firm from representing the opposing parties
and required time that the firm otherwise could have devoted to other representations,"
because this "would be true any time an attorney is engaged by a client." The Court noted
that if an attorney is including a non‐refundable fee provision as part of the representation
agreement, "a lawyer would be well advised to explicitly include the basis for such non‐
refundability in the attorney‐client agreement."
The Court noted that a flat fee agreement could be non‐refundable "except for
failure to perform the agreed legal services" and indicated that attorneys should advise
their clients of this exception. The contracts in this case did not so advise.
However, rather than advise clients of this exception, the Law Firm's Flat Fee
Contracts told clients that the fee was nonrefundable "even if the Client‐Attorney
relationship terminates prior to the completion of Attorneys' representation." The
presence of this contract provision, even if unenforceable, could chill the right of a client to
terminate Respondent's services, believing the Law Firm would be entitled to keep the
entire flat fee regardless of how much or how little work was done and the client would
have to pay another attorney to finish the task.
Finally, the Court offered guidance on how to avoid the problems it highlights here,
while still addressing the concern that a client may demand a refund of a fee as unearned,
even though the attorney has begun to open the case.
The Court is mindful of the legitimate concern of attorneys that they will go through
the initial steps of opening a case and beginning work for a new client, only to have
that client discharge them and demand a refund of the entire initial payment as
unearned. The solution, however, is not allowing attorneys to charge flat or advance
fees upfront that are wholly nonrefundable regardless of the amount of services
rendered. As an alternative, a fee agreement could designate a reasonable part of
the initial payment that would be deemed earned by the attorney for opening the
case and beginning the representation. If a general retainer for availability is
justified and additional charges for actual services are contemplated, the contract
could include a statement of the amount of the general retainer and the
circumstances supporting it along with a provision setting forth how the fees for
actual services will be calculated and collected. Even without such contract
9
provisions, "[i]t is well settled that, where the complete performance of an
attorney's services has been rendered impossible, or otherwise prevented, by the
client, the attorney may, as a rule, recover on a quantum meruit for the services
rendered by him [or her]."
Lessons:
1. Non‐refundable fees are always refundable for failure to perform the legal
services.
2. If entering into a flat fee agreement, it is proper that a reasonable part of the
initial payment be deemed earned by the attorney for opening the case and
beginning the representation.
9. The Daubert standard does not control the admissibility of expert opinions in
state court cases; Akey v. Parkview Hospital, Inc. – 2011 WL 218495
(Ind.Ct.App. 1/25/2011)(Sullivan)
This medical malpractice case arose out of an error in the administration of a
thrombylitic drug to an elderly patient in the hospital, shortly after which the patient died.
The defendants moved for summary judgment and argued that the opinion of the plaintiff's
expert (Michael Mirro, M.D.) opinion was inadmissible. The trial court agreed that the
expert's opinion was inadmissible and granted the motion for summary judgment.
On appeal, the plaintiff argued that the trial court erred in excluding his expert's
opinion that the error caused the death of plaintiff’s decedent. The defendants argued that
the expert's opinion on causation was not based on reliable scientific principles pursuant to
Rule 702(b). The Court noted the Daubert standards for admissibility of expert scientific
opinion, but also that the Indiana Supreme Court has not mandated the application of
Daubert and has chosen alternative approaches in the past. It applied this alternative
standard to determine whether the expert's opinion should have been excluded.
Akey attached to his summary judgment filings an affidavit by Mirro, who in
addition to being a board certified cardiologist, is also a clinical professor at
the Indiana University School of Medicine. Mirro has conducted clinical
research projects on a number of medications and participated in a published
paper on the hemorrhagic complications of thrombolytic therapy. Mirro
testified that he had reviewed a series of trials between 2001 and 2005
regarding the use of thrombolytic therapy in comparison with heart
catheterizations that shaped his opinion on the use of thrombolytic therapy
to treat elderly patients. We conclude that this evidence ... adequately
describes the reasoning and methodologies upon which Mirro's scientific
evidence is based. We further conclude that the evidence provides a
reasonable amount of confidence that the principles upon which Mirro's
opinion is based are reliable.
Although there was a scientific study contradicting the expert's opinion on
causation, this went to the weight of that opinion, not its admissibility.
Reasonable expert opinions are not to be summarily excluded on grounds that the
opinion has not been subjected to general acceptance by others in the field or proved by
10
testing and peer review. Such opinions, so long as not based wholly upon speculation and
conjecture, are entitled to be given due consideration.
The Court's discussion of the admissibility of scientific expert opinion under Rule
702(b) is explicitly based on the Indiana Supreme Court's failure to expressly adopt
Daubert in Indiana. Moreover, the manner in which it ruled on the admissibility of this
expert's opinion will make it easier for parties to introduce the opinions of experts who
may not pass muster under Daubert.
Lessons:
1. Indiana's courts do not mandate the Daubert standard when ruling on the
admissibility of scientific expert opinion under Evid. R. 702(b).
2. A scientific expert's opinion will be admitted if the expert adequately describes the
reasoning and methodologies upon which the scientific evidence is based and a
reasonable amount of confidence can be placed on the reliability of the principles
upon which the opinion is based.
10. Policy revision may be excluded from evidence as a subsequent remedial
measure under Rule 407; State Farm Mut. Inc. Co. v. Flexdar, Inc. – 937 N.E.2d
1203 (Ind. Ct. App. 11/22/10) (Vaidik)
Flexdar operates a factory and, in 2003, it was discovered that the industrial solvent
trichloroethylene (TCE) had leaked from the premises and contaminated subsoil and
groundwater. The contamination was reported to IDEM, which informed Flexdar that it
could be liable for the costs of cleanup and remediation. Flexdar notified State Auto and
requested defense and indemnification pursuant to its CGL policies. Those policies
contained an absolute pollution exclusion. State Auto instituted a dec action seeking a
declaration that it owed no coverage to Flexdar. The trial court concluded that the policy
was ambiguous and State Auto appealed.
On appeal, Flexdar argued that State Auto's 2004 endorsement form, which
specifically listed TCE as a pollutant, demonstrated that its prior absolute pollution
exclusion (which did not specifically identify TCE as a pollutant) was ambiguous. The Court
considered whether this evidence should be excluded under Rule 407 as a subsequent
remedial measure. The Court noted that this Rule is typically associated with personal
injury and other negligence cases, but that it is worded broadly and has been applied in
many other contexts including intentional tort and contract claims. The Court then
followed the 7th Circuit's lead (in Pastor v. State Farm Mut. Auto. Ins. Co., 487 F.3d 1042,
1045 (7th Cir. 2007)), and held that "Rule 407 may bar evidence of subsequent policy
revisions offered to resolve ambiguity in an executed insurance contract."
Quoting Pastor, the Court explained that changing the policy language was not an
admission that the previous language was ambiguous.
The subsequent version of the clause, in which State Farm made explicit that
"day" means 24 hours, and which State Farm describes as a clarification,
Pastor deems a confession that her interpretation of the original clause is
correct. Obviously it is not a confession. And to use at a trial a revision in a
contract to argue the meaning of the original version would violate Rule 407
of the Federal Rules of Evidence, the subsequent‐repairs rule, by
discouraging efforts to clarify contractual obligations, thus perpetuating any
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confusion caused by unclarified language in the contract. ... Pastor wants to
use the evidence that State Farm, to avert future liability to persons in the
position of the plaintiff, changed the policy, to establish State Farm's
"culpable conduct." That is one of the grounds that evidence of subsequent
corrective action may not be used to establish.
This decision demonstrates the Court's willingness to apply Rule 407 broadly to
contexts which only remotely touch on the opponent of that evidence's "negligence or
culpable conduct." Indeed, this decision could be used to preclude any subsequent measure
taken after a legal dispute arises.
Lesson: Evid. R. 407 precludes evidence of subsequent changes to policy language to
demonstrate an ambiguity in a prior version of the policy.
11. Fault can be apportioned to plaintiff in crashworthiness case; Green v. Ford
Motor Co. ‐ 2011 WL 400343 (Ind.S.Ct. 2/8/2011)(Dickson)
The plaintiff was severely injured when his vehicle left the road, struck a guardrail,
rolled down an embankment, and came to rest upside down in a ditch. He filed suit against
Ford, claiming that his injuries were substantially enhanced because of the alleged defects
in the vehicle's restraint system. Green moved in limine to exclude any evidence of his
alleged contributory negligence on grounds that any conduct by him in causing the vehicle
to leave the road and strike the guardrail is not relevant to whether Ford's negligent design
of the restraint system caused him to suffer injuries he would not have otherwise suffered.
Ford asserted that Green's product liability lawsuit was subject to Indiana's statutory
comparative fault principles, which require the jury to consider the fault of Green in
causing or contributing to the physical harm he suffered.
The U.S. District Court for the Southern District of Indiana (Judge McKinney)
certified the following question to the Indiana Supreme Court: Whether, in a
crashworthiness case alleging enhanced injuries under the Indiana Products Liability Act,
the finder of fact shall apportion fault to the person suffering physical harm when that
alleged fault is a proximate cause of the harm for which damages are being sought.
The Court recognized that the "crashworthiness" doctrine made manufacturers
liable "for that portion of the damage or injury caused by the defective design over and
above the damage or injury that probably would have occurred as a result of the impact or
collision absent the defective design."
As expressed in prior Indiana appellate decisions, claims for enhanced
injuries based on alleged uncrashworthiness have been viewed as separate
and distinct from the circumstances relating to the initial collision or event.
The issue was the "second collision" involving a manufacturer's failure to
exercise reasonable care in the design of a product to protect its users in light
of the likelihood that the product could be involved in an accident. Thus, a
claimant could recover only for the enhanced injuries caused by the lack of
reasonable care in designing a crashworthy product. And the fact that the
initial collision was not caused by the product's uncrashworthy design did
not preclude such a claim for enhanced injuries.
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We acknowledge the logical appeal to extend this analysis so as to view any
negligence of a claimant in causing the initial collision as therefore irrelevant
to determining liability for the "second collision." But two considerations
lead to a contrary conclusion.
First, most of the early crashworthiness decisions arose under common law or
statutory product liability law that imposed strict liability for which a plaintiff’s
contributory negligence was not available as a defense, making it irrelevant in those
cases to consider a plaintiff’s contributory negligence. Second, and more important,
product liability claims in Indiana are governed by the Indiana Product Liability Act,
which, since 1995, has expressly required liability to be determined in accordance
with the principles of comparative fault.
We conclude that, in a crashworthiness case alleging enhanced injuries under the
Indiana Product Liability Act, it is the function of the fact‐finder to consider and
evaluate the conduct of all relevant actors who are alleged to have caused or
contributed to cause the harm for which the plaintiff seeks damages. An assertion
that a plaintiff is limiting his claim to "enhanced injuries" caused by only the "second
collision" does not preclude the fact‐finder from considering evidence of all relevant
conduct of the plaintiff reasonably alleged to have contributed to cause the injuries.
From that evidence, the jury must then, following argument of counsel and proper
instructions from the court, determine whether such conduct satisfies the
requirement of proximate cause.
The fact‐finder may allocate as comparative fault only such fault that it finds to have
been a proximate cause of the claimed injuries. And if the fault of more than one
actor is found to have been a proximate cause of the claimed injuries, the fact‐finder,
in its allocation of comparative fault, may consider the relative degree of proximate
causation attributable to each of the responsible actors. Thus, while a jury in a
crashworthiness case may receive evidence of the plaintiff's conduct alleged to have
contributed to cause the claimed injuries, the issue of whether such conduct
constitutes proximate cause of the injuries for which damages are sought is a matter
for the jury to determine in its evaluation of comparative fault.
Lessons:
1. Crashworthiness cases focus on injury caused by the defective design over
and above the damage or injury that probably would have occurred as a
result of the impact or collision absent the defective design.
2. Fault can be apportioned to a plaintiff in a crashworthiness case.
12. Video surveillance of home exterior is not invasion of privacy by intrusion;
Curry v. Whitaker – 2011 WL 217932 (Ind.Ct.App. 1/25/2011)(Vaidik)
In this case, the plaintiffs were next door neighbors of the defendants. The
defendant‐wife filed a police report alleging that the plaintiff‐husband sent her threatening
emails in her capacity as the Homeowners' Association (HOA) President and that he told
people in the neighborhood that he carried a gun. The defendant‐wife later filed another
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police report that the plaintiff‐husband was throwing cigarette butts onto the defendants'
property. The defendants then installed two surveillance cameras on their home. One of the
cameras was aimed at the common yard between the two homes, part of the plaintiffs'
front yard, the plaintiffs' driveway, and the corner of the plaintiffs' garage.
A surveillance camera captured a person who the defendant‐husband thought
looked like the plaintiff‐husband damaging a home security sign that was located on the
defendants' property. The defendants showed the video of the incident to a police officer,
who could not identify the vandal. Defendants then showed the tape to another police
officer, who was an HOA board member, and said that they wanted to pursue charges
against the plaintiff‐husband. Probable cause for misdemeanor criminal mischief was
found, and the plaintiff‐husband was arrested and charged with criminal mischief.
Following a bench trial, however, he was acquitted.
The plaintiffs filed a complaint against the defendants alleging three counts: (1)
invasion of privacy by intrusion; (2) invasion of privacy by false light; and (3) intentional
infliction of emotional distress. The defendants moved for summary judgment on those
claims and the trial court granted that motion.
On appeal, the Court stated that an invasion of privacy by intrusion only happens
when there is some intrusion into the plaintiff's private physical space. The defendants
neither entered the plaintiffs' property nor aimed their cameras inside the plaintiffs' home;
rather, they simply videotaped "outside areas that can be observed by anyone passing by or
living near" the plaintiffs' house. Because the defendants did not enter the plaintiffs'
physical space, there was no liability for invasion of privacy by intrusion.
The court then held that the defendants' conduct, as a matter of law, was not "so
extreme in degree as to go beyond all possible bounds of decency and should be regarded
as atrocious and utterly intolerable in a civilized society" and, therefore, affirmed the grant
of summary judgment on the claim for intentional infliction of emotional distress.
The Court affirmed the grant of summary judgment on the plaintiffs' claim for
invasion of privacy by false light as well. The tort of invasion of privacy is similar to
defamation but reaches different interests. Defamation reaches injury to reputation, while
privacy actions involve injuries to emotions and mental suffering. The tort of invasion of
privacy by false light is described as publicity that unreasonably places the other in a false
light before the public. “Publicity occurs when the matter is made public, by communicating
it to the public at large, or to so many persons that the matter must be regarded as
substantially certain to become one of public knowledge.” The rule applies only when the
plaintiff would be justified in the eyes of the community in feeling seriously offended and
aggrieved by the publicity.
The Currys do not point to anything in the designated evidence showing that either
Andrew or Grace, the defendants, communicated the allegedly false statements to the
public. Although there is designated evidence in the record that Grace filed two police
reports and both Andrew and Grace sought the assistance of at least two police officers in
order to press charges against Jeffrey, these communications cannot be construed as
“communicating…to the public at large, or to so many persons that the matter must be
regarded as substantially certain to become one of public knowledge.” Because the Currys
have failed to establish a genuine issue of material fact on the “publicity” element of
invasion of privacy by false light, the trial court properly entered summary judgment in
favor of Andrew and Grace on this claim.
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Lessons:
1. You cannot maintain a claim for invasion by privacy by intrusion if the defendant
does not invade your private space.
2. A claim for invasion of privacy by false light requires a false communication to the
public that would cause a reasonable person to feel seriously offended and
aggrieved.
13. Pharmacists have a duty to warn of a prescribed medication’s side effects;
Kolozsvari v. Doe – 2011 WL 461626 (Ind.Ct.App. 2/10/11)(Bailey)
In this case, a woman was prescribed a laxative (OsmoPrep) to prepare her for a
colonoscopy. She filled the prescription at her regular CVS pharmacy, which had a complete
record of her prescription history. At the time, the woman was also taking an ACE inhibitor
that had been associated with a risk of kidney damage when used along with the prescribed
laxative. The pharmacist who filled the prescription received two separate warnings from
CVS’s computers while filling the two prescriptions: one alerting her to the risk of kidney
damage as a result of someone Christine's age using OsmoPrep, the other alerting her to the
risk of kidney damage as a result of the amount of OsmoPrep Christine had been prescribed
and would use in a short period of time. The pharmacist did not convey either of these
warnings to the woman.
The night before the colonoscopy, the woman took the laxative per the instructions.
By the next day, the woman did not feel that the laxative had completely prepared her for
the procedure. She called her doctor to notify him and determine what course of action to
take. The colonoscopy was rescheduled for the following day and the woman was informed
that another prescription for laxative would be called in to CVS; the woman found this
surprising, as she expected to be told to just keep drinking water.
After concluding her phone call with her doctor, the woman returned to CVS to
obtain her second round of the laxative. While the same pharmacist filled the prescription,
a second computer‐generated notification alerted her that the prescribed dose of the
laxative would exceed the amount ordinarily considered safe in such a short period of time,
increasing the risk to the woman of renal failure. The pharmacist again dismissed the
notice and filled the prescription without notifying the woman of the warning's content.
During this visit, the woman told a pharmacy technician that she had been experiencing
tingling running from her fingers to her elbows, and inquired whether these sensations
might be a side‐effect of the laxative. The technician consulted with the pharmacist, who
said that the laxative did not cause the tingling sensation.
After taking the laxative a second night, the woman woke up with her whole body
"buzzing," feeling "like if you push an electric lawnmower … and … you let go and your
hands are vibrating," and drove herself to the hospital. She was diagnosed with kidney
failure due to phosphate nephropathy.
The plaintiffs sued, among others, CVS and the pharmacist, who moved for summary
judgment, arguing that they had no duty as a matter of law to warn the woman of the
dangers posed by the laxative or to decline to fill the prescription. The trial court granted
that motion.
On appeal, the Court noted that I.C. § 25‐26‐13‐16(a) requires that pharmacists
exercise their professional judgment in the best interests of the patient's health while
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engaging in the practice of pharmacy. This, combined with customers' reliance on their
pharmacists, create a duty of care between the pharmacist and the customer.
While the provisions of the Indiana Code and Board of Pharmacy regulations do not
give rise to a statutory duty of care, the Indiana Supreme Court has held that specific
circumstances may give rise to a pharmacist's duty to warn or withhold and that the
Legislature's policy concerns, as expressed in the statutes governing pharmacies and
pharmacists, are central to determining when such a duty arises.
Here, Branchfield had information that gave rise to a duty to exercise professional
judgment under the statute. In light of this evidence, we hold that CVS and Branchfield had
a duty of care to Christine either to warn Christine of the side effects of OsmoPrep or to
withhold the medication in accordance with Indiana Code section 25‐26‐13‐16 and
Pharmacy Board rule 1‐33‐2.
Lesson: Pharmacists have a duty to warn their customers of the side effects of
prescribed medication.
14. Voluntary intoxication is not a complete defense to a Dram Shop Act claim;
Gray v. D&G, Inc. d/b/a/ The Sandstone – 938 N.E.2d 256 (Ind.Ct.App.
12/3/10)(Mathias)
In this case the Indiana Court of Appeals was asked to decide whether a trial court
properly granted summary judgment to a bar on a claim under the Dram Shop Act, I.C. §
7.1‐5‐10‐15.5, because the plaintiff was voluntarily intoxicated. The Court reversed.
Gray spent a long day at the Sandstone bar. He ate lunch and drank alcohol
throughout the day. Gray continued to consume alcohol until the bar closed at
approximately 1:00 a.m. the following morning. The bartender on duty that night was
Gray's girlfriend. After leaving the bar, Gray decided to drive his motorcycle. As he went
through an intersection, Gray struck a curb and lost control of his motorcycle. Gray
wrecked the motorcycle and was injured.
Gray sued Sandstone under the Dram Shop Act and Sandstone moved for summary
judgment because Gray was voluntarily intoxicated. The trial court granted that motion,
concluding that Gray’s voluntary intoxication precluded any recovery. Gray appealed.
On appeal, the Court held that the statute was clear: “[A]n adult consumer who is
voluntarily intoxicated may assert a claim of damages for personal injury against the
provider who furnished an alcoholic beverage that contributed to the consumer's voluntary
intoxication if: (1) the provider had actual knowledge that the consumer was visibly
intoxicated at the time the beverage was furnished, and (2) if the consumer's intoxication
was a proximate cause of the injury or damage alleged.”
Since plaintiff’s fault still needed to be allocated under the comparative fault act, the
trial court improperly granted summary judgment to the bar.
In this opinion, the Court spoke about the trial court's public policy concerns if the
law allowed people who were voluntarily intoxicated to bring claims based on their
intoxication. Despite these concerns, the Court held that the statutory language was clear.
This decision makes it nearly impossible for a Dram Shop Act defendant to win on
summary judgment based on the voluntary intoxication of the plaintiff.
Lesson: Voluntary intoxication is not a complete defense to an action under the
Dram Shop Act.
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ADVOCACY TIP OF THE MONTH: Check out the Facebook pages of potential jurors.
From Facebook.com: Facebook now has over 500 million active users worldwide.
From Reuters.com Feb. 17: Internet v. Courts: Googling for the perfect juror
"Jurors are like icebergs -- only 10 percent of them is what you see in court," said Dallas-
based jury consultant Jason Bloom. "But you go online and sometimes you can see the rest of the
juror iceberg that's below the water line."
Trial consultant Jill Huntley Taylor said that during a product-liability case last year in
which her client was representing the defendant, she discovered through online vetting that a
juror had posted on Facebook that one of her heroes was Erin Brockovich, the crusading
paralegal known for her work for plaintiffs in environmental cases.
Lawyers for food company Conagra used online jury vetting to great effect in a product-
liability case last year. The plaintiff, Elaine Khoury, claimed she contracted a rare lung disease
from preparing and consuming large amounts of microwave popcorn containing the chemical
diacetyl, which is made by Conagra Foods Inc. After the jury was sworn in Circuit Court for
Jackson County, Missouri, a ConAgra lawyer discovered that one juror's Facebook page linked
to numerous websites that are highly critical of big corporations and to a petition to boycott oil
giant BP.
From wsj.com, Feb. 22, 2011: Searching for Details Online, Lawyers Facebook the Jury
Facebook is increasingly being used in courts to decide who is—and who isn't—suitable
to serve on a jury, the latest way in which the social-networking site is altering the U.S. court
system.
Prosecution and defense lawyers are scouring the site for personal details about members
of the jury pool that could signal which side they might sympathize with during a trial. They
consider what potential jurors watch on television, their interests and hobbies, and how religious
they are.
Some appellate courts have upheld lawyers' rights to research jurors online, including one
in New Jersey that ruled last year that a lower-court judge erred by prohibiting a plaintiffs'
attorney from using the Internet in the courtroom. The court wrote: The fact that the plaintiffs'
lawyer "had the foresight to bring his laptop computer to court and defense counsel did not,
simply cannot serve as a basis for judicial intervention in the name of 'fairness' or maintaining a
'level playing field.”
From aba.journal.com, Jan. 18, 2011: Prosecutors in One Texas County Will Use
Courtroom iPads to Search Potential Jurors on Facebook
District Attorney Armando Villalobos of Cameron County, Texas, says he doesn’t want
defense lawyers to be ahead of prosecutors during jury selection. Toward that end, prosecutors
in his county will use iPads to check out the Facebook profiles of potential jurors, the
Brownsville Herald reports. “I would like my attorneys and staff to use every available tool in
their arsenal,” he told the newspaper.
From Forbes.com, Feb. 23, 2011: Make Sure Your Lawyer Knows How to Use Facebook
If you’re going to trial and your lawyer doesn’t have an iPad, you may want to seek
different legal counsel. That’s my takeaway from recent WSJ and Reuters articles on jury
selection in the social media age.
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Accessing The Indiana Law Update Electronically
For your convienence, a podcast of today’s presentation and a PDF version of this
document are available online at www.indianalawupdate.com.
PDF: Simply click on the dated item of interest, and with the proper Adobe
Acrobat software installed on your computer you will be able to view,
save or print.
PODCAST: To listen to an audio recording of the February 24, 2011 Indianapolis
Law Club simply click on the podcast link. Upon following the link, you
will be asked if you want to save or open the file.
To listen to the podcast, select the “open” button.
To download through iTunes, select the “save” button.
To download via your iPod, select the “save button”. After signing
in, select the “import” button found under the file menu. Import
the saved file from your computer. Select the “Sync iPod/mp3”
button and enjoy.
IndianaLawUpdate – the Blog
To keep up with developments in Indiana law between Law Club meetings, check out
http://www.indianalawupdate.com/
This blog is written by Brad Catlin and Ron Waicukauski of Price Waicukauski & Riley, LLC
and focuses on recent decisions of the Indiana appellate courts and the Seventh Circuit as
well as statutory and rule changes. It includes the same “lessons” feature used in Ron’s Law
Club presentations.
The IndianaLawUpdate blog is available as an RSS newsfeed. To subscribe, go to the
website at http://www.indianalawupdate.com/.
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Ronald J. Waicukauski
PRICE WAICUKAUSKI & RILEY, LLC
301 Massachusetts Avenue
Indianapolis, IN 46204
317/633‐8787 Phone
E‐mail: rwaicukauski@price‐law.com
Ron Waicukauski is a trial lawyer whose practice focuses on plaintiffs’ complex litigation
including matters involving business disputes, property rights, professional malpractice,
and class actions. He has tried more than sixty jury cases to verdict as lead counsel in both
state and federal courts. Ron has been recognized in Best Lawyers in America (2006‐2011)
and Indiana Super Lawyers (2004‐2011) and with an AV Rating from Martindale‐Hubbell.
Ron received his bachelor degree with Distinction from Northwestern University, his J.D.
degree from Harvard University where he was named Best Oralist in the Ames Moot Court
Competition, and an LL.M. degree, with Highest Honors, from George Washington
University. Ron has taught trial and appellate advocacy at the Indiana University Schools of
Law in Bloomington and Indianapolis, and has served on the faculties of the National
Institute of Trial Advocacy and the Defense Counsel Trial Academy.
Ron has also served as President of the Indianapolis American Inn of Court, as Chair of the
Continuing Legal Education Board of the International Association of Defense Counsel, and
as Co‐chair of the Training the Advocate Committee, Litigation Section, American Bar
Association. He formerly was a JAG and Captain in the U.S. Marine Corps and served as the
elected Prosecuting Attorney in Monroe County, Indiana.
Ron co‐authored The Twelve Secrets of Persuasive Argument (2009 ABA), The Winning
Argument (2001 ABA), Classical Rhetoric and the Modern Trial Lawyer, Litigation (Winter
2010); and Ethos and the Art of Argument, Litigation (Fall 1999). Ron also wrote Learning
the Craft, Litigation (Spring 1998) and was the editor and a contributing author of Law and
Amateur Sports (Ind. Univ. Press 1982).
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